EXHIBIT 10.3
[LOGO]
FINOVA Capital Corporation
115 West Century Road
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 634-3300
EQUIPMENT LEASE
No. C0856001
FINOVA Capital Corporation, (herein called "Lessor"), with its
principal place of business at Dial Tower, Dial Corporate Center,
Phoenix, Arizona, hereby agrees to lease to the Lessee named on the
signature page hereof (herein called "Lessee") and Lessee hereby
agrees to lease and rent from Lessor, the equipment described on
any attached schedule(s), (herein with all replacement parts,
repairs, additions, and accessories called "Equipment"), on the
terms and conditions hereof and as set forth on any schedule
(herein called "Schedule"). Lessee agrees that, at the option of
Lessor, any Schedule shall be a separately enforceable Lease which
incorporates all of the terms and conditions set forth herein.
1. ORDERING AND INSTALLATION OF EQUIPMENT. Lessee hereby requests Lessor to
order the Equipment from a supplier (herein called "Supplier"), and to arrange
for delivery thereof to Lessee at Lessee's expense. Lessee agrees to install or
cause the Equipment to be installed at the location set forth on the Schedule
thereof (the "Location") at Lessee's cost.
2. DISCLAIMER OF WARRANTIES AND WAIVER OF DEFENSES.
LESSOR, NEITHER BEING THE MANUFACTURER, NOR A SUPPLIER, NOR A DEALER IN
THE EQUIPMENT, MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO ANYONE, AS TO
DESIGN, CONDITION, CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT
OR ITS MATERIAL OR WORKMANSHIP. LESSOR ALSO DISCLAIMS ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR USE OR PURPOSE WHETHER ARISING BY OPERATION OF
LAW OR OTHERWISE. LESSOR FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE OR
INJURY TO LESSEE OR THIRD PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR
OTHERWISE, IN THE EQUIPMENT WHETHER ARISING FROM THE APPLICATION OF THE LAWS
OF STRICT LIABILITY OR OTHERWISE. AS TO THE LESSOR, LESSEE LEASES THE
EQUIPMENT "AS IS". LESSEE ACKNOWLEDGES THAT LESSEE HAS SELECTED THE SUPPLIER
OF THE EQUIPMENT AND THAT LESSOR HAS NOT RECOMMENDED SUPPLIER. LESSOR SHALL
HAVE NO OBLIGATION TO INSTALL, MAINTAIN, ERECT, TEST, ADJUST OR SERVICE THE
EQUIPMENT. REGARDLESS OF CAUSE, LESSEE AGREES NOT TO ASSERT ANY CLAIM
WHATSOEVER AGAINST LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR ANY OTHER
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, NOR SHALL LESSOR BE RESPONSIBLE
FOR ANY DAMAGES OR COSTS WHICH MAY BE ASSESSED AGAINST LESSEE IN ANY ACTION
FOR INFRINGEMENT OF ANY UNITED STATES LETTERS PATENT. LESSOR MAKES NO
WARRANTY AS TO THE TREATMENT OF THIS LEASE FOR TAX OR ACCOUNTING PURPOSES. If
the Equipment is unsatisfactory for any reason, Lessee shall make claim on
account thereof solely against the manufacturer, the Supplier or any dealer
and shall nevertheless pay Lessor all rent and other charges payable under the
Lease. Lessor hereby assigns to Lessee, any rights which Lessor may have against
the Supplier, the manufacturer or any dealer for breach of warranty or other
representations respecting the Equipment. Lessee understands and agrees that
neither the Manufacturer, the Supplier, any dealer nor any agent of the
foregoing is an agent of Lessor or is authorized to waive or alter any term or
condition of this Lease.
3. TERM AND RENT. The Lease term of each Schedule shall commence as of the
date that any of the Equipment under such Schedule is delivered to Lessee or
Lessee's Agent, or such later date as Lessor designates in writing (the
"Commencement Date") and shall continue until the obligations of Lessee under
this Lease shall have been fully performed. Advance rentals shall not be
refundable if the Lease term for any reason does not commence or if this Lease
or any Schedule is duly terminated by Lessor. The sum of all periodic
installments of rent indicated on any Schedule shall constitute the aggregate
rent reserved. The aggregate rent reserved shall be payable periodically in
advance, in the installments indicated on any Schedule, the first such payment
being due on the Commencement Date, or such later date as Lessor designates in
writing (the "First Payment Date"), and subsequent payments shall be due on the
same day of each successive rent period thereafter until the balance of the rent
and any charges or expenses payable by Lessee under this Lease shall have been
paid in full. If the First Payment Date is later than the Commencement Date,
Lessee shall, on the First Payment Date, in addition to the periodic rent, pay
Lessor interim rent from the Commencement Date to the First Payment Date at a
daily rate equal to the periodic installment of rent divided by the number of
days of the period. Lessee's obligation to pay all rent shall be absolute and
unconditional and not subject to any abatement, set-off, defense or counterclaim
for any reason whatsoever.
4. NON-CANCELABLE LEASE. NEITHER THE LEASE NOR ANY SCHEDULE CAN BE CANCELED
BY LESSEE DURING THE TERM HEREOF OR THEREOF.
5. LESSOR TERMINATION BEFORE EQUIPMENT ACCEPTANCE. If within ninety (90)
days from the date Lessor orders the Equipment, the same has not been delivered,
installed and accepted by Lessee (in form satisfactory to Lessor) for all
purposes of this Lease, Lessor may, on ten (10) days' written notice to Lessee,
terminate this Lease and the related Schedule and its obligations to Lessee.
6. TITLE, RECORDING, DOCUMENTATION, ADMINISTRATIVE FEES AND PERSONAL
PROPERTY. The Equipment is, and shall at all times remain, the property of
Lessor, and except as herein set forth, Lessee shall have no right, title or
interest therein. If Lessor supplies Lessee with labels indicating that the
Equipment is owned by Lessor, Lessee shall affix such labels to and keep them in
a prominent place on the Equipment. Lessee hereby authorizes Lessor to insert in
this Lease or any Schedule the serial numbers, and other identification data, of
Equipment when determined by Lessor. In order to perfect Lessor's security
interest in the Equipment in the event this Lease is determined to be a security
agreement, Lessee hereby grants Lessor a security interest in the Equipment and
authorizes Lessor, at Lessee's expense, to cause this Lease, or any statement or
other instrument in respect of this Lease showing the interest of Lessor in the
Equipment, including Uniform Commercial Code Financing Statements, to be filed
or recorded, and grants Lessor, where permitted, the right to execute Lessee's
name thereto. Lessee agrees to pay or reimburse Lessor for its costs and out of
pocket expenses relating to any searches undertaken by Lessor, or any filing,
recording, stamp fees or taxes arising from the filing or recording of any such
instrument or statement and any other costs, expenses or charges incurred by
Lessor in documenting, administering and terminating this Lease. Lessee shall,
at its expense, protect and defend Lessor's title to the Equipment against all
persons claiming against or through Lessee, at all times keeping the Equipment
free from any legal process or encumbrance whatsoever including but not limited
to liens, attachments, levies and executions, and shall give Lessor immediate
written notice thereof and shall indemnify Lessor from any loss caused thereby.
Upon Lessor's request, Lessee shall execute or obtain from third parties and
deliver to Lessor such further instruments and assurances as Lessor deems
necessary or advisable for the confirmation or perfection of Lessor's rights
hereunder. The Equipment is, and shall at all times be and remain, personal
property notwithstanding that the Equipment or any part thereof may now be, or
hereafter become, in any manner affixed or attached to real property or any
improvements thereon.
2
7. CARE, USE, LOCATION AND ALTERATION. Lessee shall, at its sole cost and
expense, service, repair, overhaul and maintain each item of Equipment in good
operating order and in the condition when delivered to Lessee, ordinary wear and
tear excepted. All such maintenance shall be consistent with prudent industry
practice and all maintenance practices recommended by the Supplier or
manufacturer and meet all legal and regulatory requirements. Upon request,
Lessee shall provide Lessor with evidence of such compliance. Lessee shall
maintain logs of the maintenance and service of the Equipment and permit Lessor,
on reasonable prior notice to inspect the Equipment and the right to make copies
of the logs and service reports. Lessee shall forthwith correct any deficiencies
disclosed by such inspection. Lessee shall use the Equipment solely for business
purposes, in compliance with all applicable laws, ordinances, regulations, and
the conditions of all insurance policies required to be maintained by Lessee
pursuant to the Lease. Lessee shall make all additions, modifications and
improvements to the Equipment required by applicable law and except for such
required changes, shall not alter the Equipment without Lessor's prior written
consent. Lessee shall replace all worn, lost, stolen or destroyed parts of the
Equipment with replacement parts at least meeting the standards required herein,
all of which shall become the property of Lessor, except for such additions,
modifications and improvements that can be readily removed without causing
damage to, or impairing the commercial value or utility of, such Equipment,
which shall remain Lessee's property and may be removed by Lessee at its expense
before the Equipment is surrendered to Lessor. Lessee shall repair all damage to
any item resulting from such installation or removal. If Lessee has not
purchased an item of Equipment pursuant to any option to purchase granted to
Lessee at the end of the Lease term for such item, Lessor shall be entitled to
purchase any such addition, modifications and improvements from Lessee for its
then fair market value. The Equipment shall not be removed from the Location
without Lessor's prior written consent.
8. NOTICE AND CONDITIONS OF REDELIVERY. Lessee shall provide Lessor not
less than One Hundred Twenty (120) days prior written notice of its intention
to exercise its option to purchase the Equipment if granted on the related
Schedule or return the Equipment to Lessor (the "Required Notice"). If Lessee
shall have timely provided such Required Notice and has elected to return the
Equipment to Lessor upon the expiration of the Term of the Schedule, Lessee
shall, at its sole expense, return the Equipment covered thereby, freight
prepaid, to Lessor in a manner and to a location within the continental
United States designated by Lessor in the condition and repair required by
the terms of this Lease, free of all liens and advertising insignia. If
Lessee shall fail to return any item of Equipment as provided herein, Lessee
shall be responsible for all cost and expense incurred by Lessor in returning
the Equipment to such required condition or any reduction in value as a
result thereof. If the Equipment or its component parts were packed or crated
for shipping when new, Lessee shall pack or crate the same carefully and in
accordance with any recommendations of the Supplier or manufacturer before
redelivering the item to Lessor. Lessee shall also deliver to Lessor the
plans, specifications, operating manuals, software documentation, discs,
warranties and other documents furnished by the manufacturer or Supplier of
the Equipment and such other documents in Lessee's possession relating to the
maintenance and method of operation of such Equipment. At Lessor's written
request, Lessee shall provide free storage for any item of Equipment for a
period not to exceed sixty (60) days after the expiration of the Schedule
term before returning such item to Lessor and permit Lessor access to the
Equipment for inspection and/or resale. If Lessee fails to timely provide
such Required Notice the Equipment shall continue to be held and leased
hereunder, and this Lease and the related Schedule term shall thereupon be
extended for a period ending one hundred twenty (120) days following receipt
by Lessor of Lessee's notice of intent to return the Equipment, for the fair
market rental value of the Equipment as determined by Lessor not to exceed
the periodic installment of rent with respect to such Equipment for such
period. If Lessee has timely provided the Required Notice but upon expiration
Lessee does not immediately return the Equipment to Lessor, (unless otherwise
requested by Lessor) the Equipment shall continue to be held and leased
hereunder, and this Lease and the related Schedule term shall thereupon be
extended for successive thirty (30) day periods at the fair market rental
value of the Equipment as determined by Lessor not to exceed the periodic
installment of rent with respect to such Equipment for such period.
9. RISK OF LOSS. Lessee shall bear all risks of loss of and damage to the
Equipment from any cause and the occurrence of such loss or damage shall not
relieve Lessee of any obligation hereunder. In the event of loss or damage,
Lessee, at its option, provided it is not in default hereunder, otherwise at
3
Lessor's option, shall: (a) place the damaged Equipment in good repair,
condition and working order; or (b) replace lost or damaged Equipment with like
equipment in good repair, condition and working order with documentation
creating clear title thereto in Lessor; or (c) pay to Lessor the then present
value computed at five (5%) percent per annum of both the unpaid balance of the
aggregate rent reserved under the Lease and related Schedule and the value of
Lessor's residual interest in the Equipment. Upon Lessor's receipt of such
payment, Lessee and/or Lessee's insurer shall be entitled to Lessor's interest
in said item for salvage purposes, in its then condition and location, as is,
without warranty, express or implied.
10. INSURANCE. Until redelivered to Lessor, Lessee shall maintain and
deliver evidence to Lessor of such insurance required by, written by insurers,
and in amounts satisfactory to Lessor. Should Lessee fail to provide such
insurance coverage, Lessor may obtain coverage for part or all of the term of
this Lease or any Schedule or such period beyond the term as is required by the
insurance company issuing such coverage protecting interests of Lessor and
Lessee or the interest of Lessor only. The proceeds of such insurance, at the
option of Lessee, provided it is not in default hereunder, otherwise at Lessor's
option, shall be applied toward (i) the replacement, restoration or repair of
the Equipment or (ii) payment of the obligations of Lessee hereunder. Lessee
hereby appoints Lessor as Lessee's attorney-in-fact to make claims for, receive
payment of, and execute and endorse all documents, checks, or drafts for loss or
damage under any said insurance policies.
11. NET LEASE; TAXES. Lessee intends the rental payments hereunder to be
net to Lessor, and Lessee shall pay all sales, use, excise, stamp, documentary
and ad valorem taxes, license and registration fees, assessments, fines,
penalties and similar charges imposed on the ownership, possession or use of the
Equipment during the term of this Lease or any Schedule; shall pay all taxes
(except Lessor's Federal or State net income taxes) imposed on Lessor or Lessee
with respect to the rental payments hereunder, and shall reimburse Lessor upon
demand for any taxes paid by or advanced by Lessor. Unless Lessee is otherwise
directed by Lessor, in writing, Lessor shall file for and pay all personal
property taxes assessed with respect to the Equipment during the term of this
Lease and Lessee shall, upon Lessor's demand, forthwith reimburse Lessor for the
full amount of such taxes without regard to any discounts obtained by Lessor due
to early payment or otherwise. Lessor may, if it elects, estimate such personal
property taxes and bill Lessee periodically in advance therefor.
12. INDEMNITY. Lessee shall hold Lessor harmless from, indemnify and defend
Lessor against, any and all claims, actions, suits, proceedings, costs,
expenses, damages and liabilities, including attorney's fees arising out of,
connected with or resulting from the Equipment or this Lease or any Schedule,
including, without limitation, the manufacture, selection, delivery, possession,
use, operation or return of the Equipment. These indemnities shall survive the
termination or expiration of this Lease or any Schedule.
13. DEFAULT AND REMEDIES. If (i) Lessee defaults in any payment required
under this Lease or any Schedules or under any other lease or agreement between
Lessor and Lessee, or (ii) Lessee breaches any of the representations or
warranties contained herein or fails to perform any of the terms, covenants or
conditions of this Lease or any Schedule or (iii) a petition in bankruptcy,
arrangement, insolvency or reorganization is filed by or against Lessee or any
guarantor of Lessee's obligations hereunder, or (iv) Lessee or any guarantor of
Lessee's obligations makes an assignment for the benefit of creditors, or (v)
without Lessor's written consent, Lessee sells all or a substantial part of
Lessee's assets or a majority of Lessee's voting stock is transferred, or (vi)
during the term of the Lease or any Schedule there is a material adverse change
in the financial condition of Lessee or any guarantor of Lessee's obligations,
or (vii) an "Event of Default", [as defined in the Secured Business Loan
Agreement dated as of March 4, 1998, as may be amended from time to time, (the
"Credit Agreement"), between Lessee and Bank of America National Trust and
Savings Association (the "Lender")], (after all applicable cure periods have
run), shall be a default under the Lease. Lessee will promptly deliver to Lessor
copies of all notices received by Lessee from the Lender or delivered by Lessee
(or officer of Lessee) to the Lender to the effect that an Event of Default has
occurred under the Credit Agreement, Lessee will also promptly deliver to Lessor
written notice of the occurrence of any such Event of Default, if Lessee has not
otherwise notified Lessor in accordance with the immediately preceding sentence,
then Lessor may, to the extent permitted by law, exercise any one or more of the
4
following remedies: (a) to declare the entire balance of rent for the full term
of any or all Schedules covered hereby immediately due and payable and to
similarly accelerate the balances under any other leases or agreements between
Lessor and Lessee without notice or demand, (b) to sue for and recover all
rents, and other monies due and to become due under any or all Schedules
hereunder and the residual value of the Equipment covered thereby discounted to
the date of default at five (5%) percent per annum; (c) to require Lessee at
Lessee's expense, to assemble all the Equipment at a place reasonably designated
by Lessor, (d) to remove any physical obstructions for removal of the Equipment
from the place where the Equipment is located and take possession of any or all
items of Equipment, without demand or notice, wherever same may be located,
disconnecting and separating all such Equipment from any other property, with or
without any court order or pre-taking hearing or other process of law, it being
understood that facility of repossession in the event of default is a basis for
the financial accommodation reflected by this Lease. Lessee hereby waives any
and all damages occasioned by such retaking. Lessor may, at its option, use,
ship, store, repair or lease all Equipment so removed and sell or otherwise
dispose of any such Equipment at a private or public sale. Lessor may expose and
resell the Equipment at Lessee's premises at reasonable business hours without
being required to remove the Equipment. In the event Lessor takes possession of
the Equipment, Lessor shall give Lessee credit for any sums received by Lessor
from the sale, or present value of the rental, of the Equipment computed at the
implicit rate of the Schedule after deduction of the expenses of sale or rental.
Lessee shall also be liable for and shall pay to Lessor on demand (a) all
expenses incurred by Lessor in connection with the enforcement of any of
Lessor's remedies, including all expenses of repossession, storing, shipping,
repairing and selling the Equipment, (b) Lessor's reasonable attorney's fees and
(c) interest on all sums due Lessor from the date of default until paid at the
rate of one and one-half (1.5%) percent per month, but only to the extent
permitted by law. Lessor and Lessee acknowledge the difficulty in establishing a
value for the unexpired Lease term and owing to such difficulty agree that the
provisions of this paragraph represent an agreed measure of damages and are not
to be deemed a forfeiture or penalty.
Whenever any payment hereunder is not made by Lessee within ten (10) days when
due, Lessee agrees to pay to Lessor, not later than one month thereafter, an
amount calculated at the rate of ten cents per one dollar of each such delayed
payment, as an administrative fee to offset Lessor's collection costs, but only
to the extent allowed by law. Such amount shall be payable in addition to all
amounts payable by Lessee as a result of exercise of any of the remedies herein
provided.
All remedies of Lessor hereunder are cumulative, are in addition to any other
remedies provided for by law, and may, to the extent permitted by law, be
exercised concurrently or separately. The exercise of any one remedy shall not
be deemed to be an election of such remedy or to preclude the exercise of any
other remedy. No failure on the part of the Lessor to exercise and no delay in
exercising any right or remedy shall operate as a waiver thereof or modify the
terms of this Lease. A waiver of default by Lessor on any one occasion shall not
be deemed a waiver of any other or subsequent default. In the event this Lease
is determined to be a security agreement, Lessor's recovery shall in no event
exceed the maximum permitted by law.
14. PERFORMANCE BY LESSOR OF LESSEE'S OBLIGATIONS. In the event Lessee
fails to comply with any provision of this Lease, Lessor shall have the
right, but shall not be obligated, to effect such compliance on behalf of
Lessee upon ten (10) days prior written notice to Lessee. In such event, all
monies advanced or expended by Lessor, and all expenses of Lessor in
effecting such compliance, shall be deemed to be additional rent, and shall
be paid by Lessee to Lessor at the time of the next periodic payment of rent.
15. ASSIGNMENT; QUIET ENJOYMENT. LESSOR MAY, WITHOUT LESSEE'S CONSENT,
ASSIGN THIS LEASE OR ANY SCHEDULE AND/OR THE RENTALS DUE THEREUNDER OR SELL
OR GRANT A SECURITY INTEREST IN THE EQUIPMENT AND LESSEE AGREES THAT NO
ASSIGNEE OF LESSOR SHALL BE BOUND TO PERFORM ANY DUTY, COVENANT OR CONDITION
OR WARRANTY (EXPRESS OR IMPLIED) ATTRIBUTABLE TO LESSOR AND LESSEE FURTHER
AGREES NOT TO RAISE ANY CLAIM OR DEFENSE ARISING OUT OF THIS LEASE OR
OTHERWISE AGAINST LESSOR AS A DEFENSE, COUNTERCLAIM OR OFFSET TO ANY ACTION
BY ANY ASSIGNEE
5
HEREUNDER. NOTWITHSTANDING ANY ASSIGNMENT BY LESSOR, PROVIDING LESSEE IS NOT IN
DEFAULT HEREUNDER, LESSEE SHALL QUIETLY ENJOY USE OF THE EQUIPMENT, SUBJECT TO
THE TERMS AND CONDITIONS OF THE LEASE.
WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT ASSIGN, TRANSFER,
PLEDGE, HYPOTHECATE OR OTHERWISE DISPOSE OF THE EQUIPMENT OR ANY INTEREST
THEREIN, OR SUBLET OR LEND EQUIPMENT OR PERMIT IT TO BE USED BY ANYONE OTHER
THAN LESSEE OR LESSEE'S EMPLOYEES.
16. NOTICES. Service of all notices under this Lease shall be sufficient if
given personally or mailed to the intended party at its respective address set
forth herein, or at such other address as said party may provide in writing from
time to time. Any such notice mailed to said address shall be effective three
(3) days following the date when deposited in the United States mail, duly
addressed and with postage prepaid.
17. REPRESENTATIONS AND COVENANTS OF LESSEE. Lessee represents that all
financial and other information furnished to Lessor was, at the time of
delivery, true and correct. As soon as practicable, and in any event within
ninety (90) days after the close of each fiscal year of Lessee, Lessee shall
furnish to Lessor Tomahawk Corporation's consolidated annual audited reports for
such year, including statements of income, retained earnings and changes in
financial position of Lessee for such fiscal year and balance sheets as of the
close of such fiscal year, reviewed without qualification by independent
certified public accountants of recognized standing selected by Lessee and
reasonably satisfactory to Lessor, together with (or included in such review) a
written statement of such accountants substantially to the effect that (i) such
accountants reviewed such financial statements in accordance with generally
accepted auditing standards and accordingly made such tests of accounting
records and such other auditing procedures as they considered necessary in the
circumstances and (ii) in the opinion of such accountants such financial
statements present fairly the financial position of Lessee as of the end of such
fiscal year and the results of its operations and the changes in its financial
position for the fiscal year then ended, in conformity with GAAP applied on a
basis consistent with that of the preceding fiscal year (except for changes in
application in which such accountants concur).
Within sixty (60) days after the end of each of the first three fiscal quarters
of each fiscal year, Lessee shall furnish to Lessor a copy of Tomahawk
Corporation's interim financial statements, certified by an Executive Officer of
Tomahawk Corporation or if Tomahawk Corporation chooses, audited as set forth
above and certified by an Executive Officer of Tomahawk Corporation, in
conformity with GAAP.
During the term of the Lease, Lessee shall provide Lessor with such additional
financial statements as Lessor requests.
Lessee has taken all action necessary to assure that there will be no material
adverse change to Lessee's business by reason of the advent of the year 2000,
including without limitation that all computer-based systems, embedded
microchips and other processing capabilities effectively recognize and process
dates after April 1, 1999. At Lessor's request, Lessee shall provide to Lessor
assurance reasonably acceptable to Lessor that Lessee's computer-based systems,
embedded microchips and other processing capabilities are year 2000 compatible.
18. GOVERNING LAW; JURISDICTION; VENUE; SERVICE OF PROCESS; WAIVER OF TRIAL
BY JURY. THIS LEASE SHALL BE BINDING WHEN ACCEPTED IN WRITING BY THE LESSOR AND
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ARIZONA, PROVIDED, HOWEVER, IN THE
EVENT THIS LEASE OR ANY PROVISION HEREOF IS NOT ENFORCEABLE UNDER THE LAWS OF
THE STATE OF ARIZONA THEN THE LAWS OF THE STATE WHERE THE EQUIPMENT IS LOCATED
SHALL GOVERN. ANY DISPUTE UNDER THIS LEASE SHALL BE LITIGATED BY LESSEE ONLY IN
FEDERAL OR STATE COURTS
6
LOCATED IN MARICOPA COUNTY, ARIZONA, AND LESSEE IRREVOCABLY SUBMITS TO THE
PERSONAL JURISDICTION OF SUCH COURTS AND WAIVES ANY OBJECTION THAT MAY EXIST AS
TO VENUE OR CONVENIENCE OF SUCH FORUMS. NOTHING CONTAINED HEREIN SHALL PRECLUDE
LESSOR FROM COMMENCING ANY ACTION IN ANY COURT HAVING JURISDICTION THEREOF.
SERVICE OF PROCESS IN ANY SUCH ACTION SHALL BE SUFFICIENT IF SERVED BY CERTIFIED
MAIL RETURN RECEIPT REQUESTED TO THE ADDRESS OF THE PARTY SET FORTH FOLLOWING
THE SIGNATURES AT THE END OF THIS LEASE. TO THE EXTENT PERMITTED BY LAW, LESSEE
WAIVES TRIAL BY JURY IN ANY ACTION BY OR AGAINST LESSOR HEREUNDER.
19. GENERAL. This Lease inures to the benefit of and is binding upon the
heirs, legatees, personal representatives, successors and assigns of the parties
hereto. Time is of the essence of this Lease. This Lease and all Schedules
attached hereto contain the entire agreement between Lessor and Lessee, and no
modification of this Lease or any Schedule shall be effective unless in writing
and executed by an executive officer of Lessor. If more than one Lessee is named
in this Lease, the liability of each shall be joint and several. In the event
any provision of this Lease should be unenforceable, then such provision shall
be deemed deleted, however, no other provision hereof shall be affected thereby.
20. FINANCE LEASE STATUS. Lessor and Lessee agree that if Article 2A - Leases
of the Uniform Commercial Code ("Code") governs the terms of this Lease, then
this Lease will be deemed a "finance lease". By executing this Lease, Lessee
acknowledges that (a) Lessor has advised Lessee of (i) the identity of the
Supplier; (ii) that Lessee may have rights under the "supply contract" as
defined in the Code, pursuant to which Lessor is purchasing the Equipment, and
(iii) that Lessee may contact the Supplier for a description of any such rights.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND
REMEDIES CONFERRED UPON A LESSEE BY THE CODE, INCLUDING SECTIONS 2A - 508
THROUGH 522 THEREOF.
21. PUBLICITY. Lessor is hereby authorized to issue appropriate press
releases and to cause a tombstone to be published announcing the consummation of
this transaction and the aggregate amount thereof.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION TOMAHAWK II, INC.
BY: BY: /s/ Michael H. Lorber
----------------------------- -------------------------------
PRINTED NAME: PRINTED NAME: Michael H. Lorber
-------------------- ---------------------
TITLE: TITLE: VP Finance & CFO
-------------------------- ----------------------------
Taxpayer Identification No.: 36-3873499
----------
ADDRESS: ADDRESS:
115 WEST CENTURY ROAD, P.O. BOX 907 8315 CENTURY PARK, COURT #200
PARAMUS, NEW JERSEY 07653 SAN DIEGO, CALIFORNIA 92123
DATE ACCEPTED: DATED: 11/19/98
------------------- --------------------------------
7
Exhibit A
FINOVA Capital Corporation
115 West Century Road
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 634 3300
MASTER LEASE SCHEDULE
NO. C0856001 TO EQUIPMENT LEASE NO. C0856001 (THE "LEASE")
EQUIPMENT LEASED SUPPLIER:
See Schedule "A" attached hereto CNC Associates, Inc.
2800 Sturgis Road
Oxnard, CA 93030
LOCATION OF EQUIPMENT
8315 Century Park
Court #200
San Diego, CA 92123
TERM OF SCHEDULE: FORTY-EIGHT (48) MONTHS
SIX (6) SUCCESSIVE MONTHLY RENTAL PAYMENTS EACH IN THE AMOUNT OF $6,435.43
FOLLOWED BY FORTY-TWO (42) SUCCESSIVE MONTHLY RENTAL PAYMENTS EACH IN THE AMOUNT
OF $11,329.53, SUBJECT TO THE INDEXING PROVISION CONTAINED HEREIN, PAYABLE IN
ARREARS.
ADDITIONAL TERMS AND CONDITIONS
1. LEASE OF EQUIPMENT. Lessor hereby agrees to lease to Lessee, and Lessee
hereby agrees to lease and rent from Lessor the Equipment listed above, or on
any Schedule attached hereto, for the term and the rental payments provided
herein, all subject to the terms and conditions of the Lease.
2. OPTION TO PURCHASE. Provided Lessee is not in default under the Lease or this
Schedule or under any other Lease or agreement with Lessor, Lessee shall have
the right, at the expiration of the Term of this Schedule or any extended term
thereof, upon not less than 120 days' prior written notice to Lessor, to
purchase the Equipment leased hereunder, in whole but not in part, on an as-is,
where-is basis for the fair market value thereof which the parties agree is
$1.00.
3. ADDITIONAL TERMS WITH RESPECT TO THE CARE AND USE OF THE EQUIPMENT. In
addition to Lessee's obligations under Paragraph 7 of the Lease, Lessee shall
(i) lubricate the Equipment on a basis that conforms to the maintenance manual
and/or lubrication schedule recommended by the manufacturer of the Equipment,
and (ii) purchase replacement parts only from sources approved by the
manufacturer. Copies of all purchase orders for such replacement parts are to
be retained in Lessee's file relating to the Equipment.
4. ADDITIONAL TERMS WITH RESPECT TO THE CONDITIONS OF REDELIVERY. In addition to
Lessee's obligations under Paragraph 8 of the Lease, Lessee shall (i) dismantle
and handle the Equipment in accordance with the manufacturer's specifications or
normal industry accepted practices for new equipment. Any special transportation
devices, such as metal skids, lifting slings, brackets, etc., which were with
the Equipment when it was delivered or equivalent devices must be used; (ii)
block all sliding members, secure all swinging doors, pendants and other
swinging components, wrap, box, band and label all components and documents in
an appropriate manner to facilitate the efficient reinstallation of the
components; (iii) remove all process fluids from the Equipment and dispose of
the same in accordance with prevailing waste disposal laws and regulations; (iv)
clean and dry sumps and tanks; (v) not ship any "Hazardous Waste" materials with
the equipment; (vi) fill all internal fluids such as lube oil and hydraulic oil
to operating levels, secure filler caps and seal disconnected hoses; (vii) wire
together all lock keys and secure the same to a major external component of the
equipment; (viii) cause the Equipment to be complete, fully functional with no
missing components or attachments, rust free with all boots, guards and seals
clean and with all batteries for control memories fully charged.
Lessor shall have the right to attempt to resell the Equipment at the
Location for a period of 120 days from the expiration of the Term of the
Schedule or any extensions thereof. During this period the Equipment must remain
operational and Lessee must provide adequate electrical power, lighting, heat,
water and compressed air, necessary to permit Lessor to demonstrate the
Equipment to any potential buyer. If an auction is necessary to dispose of the
Equipment, Lessor shall be permitted to auction the Equipment at the Location.
5. INDEXING. If on the Commencement Date, the highest yield on four (4) year
Treasury Notes, as published in THE WALL STREET JOURNAL, with a maturity date on
or closest to the maturity date of this Schedule (the "Index"), exceeds 4.33%
(the "Yield"), the Monthly Rental Payment provided herein shall automatically
be increased for the full term to reflect such increase in the Yield. As soon as
practicable thereafter, Lessor shall provide Lessee with written notice of any
increase in the Monthly Rental Payment. Lessor's calculations shall be
conclusive absent manifest error.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION TOMAHAWK II, INC.
BY: BY: Michael H. Lorber
------------------------------- ----------------------------
PRINTED NAME: PRINTED NAME: Michael H. Lorber
--------------------- ------------------
TITLE: TITLE: VP Finance & CFO
---------------------------- -------------------------
ADDRESS: ADDRESS:
115 WEST CENTURY ROAD, P.O. BOX 907 8315 CENTURY PARK, COURT #200
PARAMUS, NEW JERSEY 07653 SAN DIEGO, CALIFORNIA 92123
DATE ACCEPTED: DATED: 11/19/98
--------------------- --------------------------
3. ADDITIONAL TERMS WITH RESPECT TO THE CARE AND USE OF THE EQUIPMENT. In
addition to Lessee's obligations under Paragraph 7 of the Lease, Lessee shall
(i) lubricate the Equipment on a basis that conforms to the maintenance manual
and/or lubrication schedule recommended by the manufacturer of the Equipment,
and (ii) purchase replacement parts only from sources approved by the
manufacturer. Copies of all purchase orders for such replacement parts are to
be retained in Lessee's file relating to the Equipment.
4. ADDITIONAL TERMS WITH RESPECT TO THE CONDITIONS OF REDELIVERY. In addition to
Lessee's obligations under Paragraph 8 of the Lease, Lessee shall (i) dismantle
and handle the Equipment in accordance with the manufacturer's specifications or
normal industry accepted practices for new equipment. Any special transportation
devices, such as metal skids, lifting slings, brackets, etc., which were with
the Equipment when it was delivered or equivalent devices must be used; (ii)
block all sliding members, secure all swinging doors, pendants and other
swinging components, wrap, box, band and label all components and documents in
an appropriate manner to facilitate the efficient reinstallation of the
components; (iii) remove all process fluids from the Equipment and dispose of
the same in accordance with prevailing waste disposal laws and regulations; (iv)
clean and dry sumps and tanks; (v) not ship any "Hazardous Waste" materials with
the equipment; (vi) fill all Internal fluids such as lube oil and hydraulic oil
to operating levels, secure filler caps and seal disconnected hoses; (vii) wire
together all lock keys and secure the same to a major external component of the
equipment; (viii) cause the Equipment to be complete, fully functional with no
missing components or attachments, rust free with all boots, guards and seals
clean and with all batteries for control memories fully charged.
Lessor shall have the right to attempt to resell the Equipment at the
Location for a period of 120 days from the expiration of the Term of the
Schedule or any extensions thereof. During this period the Equipment must remain
operational and Lessee must provide adequate electrical power, lighting, heat,
water and compressed air, necessary to permit Lessor to demonstrate the
Equipment to any potential buyer. If an auction is necessary to dispose of the
Equipment, Lessor shall be permitted to auction the Equipment at the Location.
5. INDEXING. If on the Commencement Date, the highest yield on four (4) year
Treasury Notes, as published in The Wall Street Journal, with a maturity date on
or closest to the maturity date of this Schedule (the "Index"), exceeds 4.33%
(the "Yield"), the Monthly Rental Payment provided herein shall automatically
be increased for the full term to reflect such increase in the Yield. As soon as
practicable thereafter, Lessor shall provide Lessee with written notice of any
increase in the Monthly Rental Payment. Lessor's calculations shall be
conclusive absent manifest error.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION TOMAHAWK II, INC.
BY: /s/ A. Holland BY: /s/ Michael H. Lorber
-------------------------------- ----------------------------
PRINTED NAME: A. Holland PRINTED NAME: Michael H. Lorber
TITLE: Director, Contr Admin TITLE: VP Finance & CFO
-------------------------
ADDRESS: ADDRESS:
115 WEST CENTURY ROAD, P.O. BOX 907 8315 CENTURY PARK, COURT #200
PARAMUS, NEW JERSEY 07653 SAN DIEGO, CALIFORNIA 92123
DATE ACCEPTED: 12-2-98 DATED: 12/19/98
FINOVA
FINANCIAL INNOVATORS
VIA FACSIMILE
115 WEST CENTURY ROAD
P.O. BOX 907
PARAMUS, NEW JERSEY 07653
December 1, 1998 TEL (201) 634-3300
Mr. Michael H. Lorber
Tomahawk II, Inc.
8315 Century Park
Court #200
San Diego, CA 92123
Re: Master Lease Schedule No. C0856001 to Equipment Lease No. C0856001 between
Tomahawk II, Inc. as Lessee and FINOVA Capital Corporation as Lessor (the "Lease
Agreement").
Dear Mr. Lorber:
Please be advised that the monthly rental payments as currently stated
on the Master Lease Agreement, being six months at $6,435.43 followed by
forty-two months at $11,329.53 were calculated based upon CNC
Associates. Inc. payoff (the "CNC Payoff") amount of $397,248.60.
It has been determined that the CNC Payoff has been increased to
$398,158.86 and therefore the monthly rental payments will increase to
six months at $6,450.17 followed by forty-two months at $11,355.49.
All other terms and conditions of the Lease Agreement remain unchanged.
Your signature below will acknowledge the foregoing.
Very truly yours,
FINOVA Capital Corporation
Anthony M. Holland
Director, Contract Administration
ACKNOWLEDGED AND AGREED:
BY: TOMAHAWK II, INC.
By: /s/ Michael H. Lorber
Dated: 12/1/98
Exhibit B
FINOVA Capital Corporation
115 West Century Road
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 634-3300
CORPORATE RESOLUTION AUTHORIZING LEASE
I, Michael Lorber the duly elected Secretary of Tomahawk II, Inc., a
California corporation do hereby certify that at a Special Meeting of the Board
of Directors of said Corporation held on the 23rd day of October, 1998, the
following resolution was adopted and remains in full force and effect:
"RESOLVED, that any President, Vice President, Treasurer or
Secretary or if not such officer then the authorized signatory
listed below, be and are authorized and directed to enter into,
execute and deliver on behalf of this Corporation a Lease
Agreement with FINOVA Capital Corporation whereby this
Corporation will lease certain equipment on such terms and
conditions as set forth in said lease, a copy of which lease was
exhibited to the Board of Directors or such other terms as such
officers deem advisable."
Fill in name of authorized signatory
if an officer does not execute Lease ______________________________
IN WITNESS WHEREOF, I have affixed my name as Secretary of said
Corporation and have caused the corporate seal of said Corporation to be
hereunto affixed this 19th day of November, 1998.
/s/ Michael H. Lorber
-------------------------
(Secretary)
Exhibit C
________________, 1998
FINOVA Capital Corporation
115 West Century Road
Paramus, NJ 07652
BILL OF SALE
For good and valuable consideration, the receipt of which is hereby
acknowledged, Tomahawk II, Inc. ("Tomahawk") hereby sells to FINOVA Capital
Corporation ("FINOVA") all it's rights, title and interest in and to the
equipment ("Equipment") which is the subject of and is described on that certain
Master Lease Schedule No. C0856001 to Equipment Lease No. C0856001 between
FINOVA as Lessor and Tomahawk as Lessee on an "AS IS' "WHERE IS" basis and
conveys onto FINOVA good and marketable title to the Equipment, free and clear
of all liens, security interests, pledges, claims, charges, encumbrances,
agreements, rights or interests of third parties or other imperfections of
title.
Tomahawk II, Inc.
By: /s/ Michael H. Lorber
---------------------------
Printed Name: Michael H. Lorber
-----------------
Title: VP - Finance & CFO
------------------------
FINOVA Capital Corporation
113 West Century Road
P.O. Box 951
Paramus, New Jersey 07653
(201) 631-3300
[STAMP]
Exhibit D
GUARANTY
1. RECITALS
(a) This Guaranty is made by the undersigned (hereinafter each called
a "Guarantor"), in favor of FINOVA Capital Corporation ("FINOVA")
(b) FINOVA intends to enter into one or more financial transactions
(collectively "Transactions") with Tomahawk II, Inc. ("Debtor") evidenced by
certain equipment leases, notes, security agreements, mortgages, deeds of
trust or other instruments ("Agreements").
(c) Guarantor has a financial or other interest in Debtor and/or the
Transactions, and expects to obtain a financial or other benefit if FINOVA
enters into the Transactions.
2. GUARANTY
In order to induce FINOVA to enter into one or more Transactions and
Agreements with Debtor, and in consideration thereof.
(a) Guarantor unconditionally guarantees to FINOVA the prompt payment,
when due, of all now existing or hereafter arising indebtedness and
obligations of Debtor to FINOVA of every kind or nature, however arising
("Indebtedness").
(b) Guarantor unconditionally guarantees to FINOVA the prompt, full
and faithful performance and discharge by Debtor of each and every term,
condition, agreement representation, warranty and provision of the part of
Debtor made in connection with the Transactions and the Agreements or any
modification, amendment or substitution thereof.
(c) Guarantor shall, on demand, reimburse FINOVA for all expenses,
collection charges, court costs and reasonable attorneys' fees incurred by
FINOVA in endeavoring to collect or enforce any of FINOVA's rights and
remedies against Debtor and/or Guarantor or any other person or concern
liable thereto.
(d) Guarantor shall pay all of the foregoing amounts and perform all
of the foregoing terms, covenants and conditions notwithstanding that any
part or all of the Transactions or the Agreements shall be void or voidable
as against Debtor or any of Debtor's creditors, including a trustee in
bankruptcy of Debtor, by reason of any fact or circumstances including,
without limitation, failure by any person to file any document or to take any
other action to make any of the Transactions or Agreements enforceable in
accordance with their respective terms.
3. PRIMARY NATURE OF GUARANTY
The liability of Guarantor hereunder is primary, absolute, unconditional,
direct and independent of the obligations of Debtor. Nothing shall discharge
or satisfy Guarantor's liability hereunder except the full performance and
payment of all of Debtor's obligations to FINOVA, with interest. Guarantor
also agrees that the obligations of Guarantor hereunder shall not be relieved
in the event FINOVA fails to protect or otherwise impairs any collateral.
4. WAIVERS BY GUARANTOR
(a) Guarantor waives notice of acceptance hereof and of all notices
and demands of any kind to which Guarantor may be entitled including without
limitation, all demands of payment and notice of nonpayment, protest and
dishonor to Guarantor, or Debtor, or the makers or endorsers of any notes or
other instruments for which Guarantor is or may be liable hereunder.
Guarantor further waives notice of and hereby consents to any agreement or
arrangement for subordination, composition, arrangement, discharge or
release of any part of Debtor's obligations under any of the Transactions or
Agreements or release of other guarantors, or for compromise of any sums due
in any way whatsoever; and the same shall in no way impair Guarantor's
liability hereunder.
(b) Guarantor waives any right to require FINOVA to: (i) proceed
against Debtor; (ii) proceed against or exhaust any security held by FINOVA
of Debtor or others; or (iii) pursue any other remedy which FINOVA may have,
including against any other guarantor of Debtor's obligations to FINOVA.
(c) Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which
it may now or hereafter have against the Debtor or any person directly or
contingently liable for the obligations guaranteed hereunder, or against or
with respect to the Debtor's property (including, without limitation property
collateralizing the obligations guaranteed hereunder), arising from the
existence or performance of this Guaranty.
5. GUARANTOR'S PROPERTY AS SECURITY FOR GUARANTY
All sums at any time to Guarantor's credit and any of Guarantor's property at
any time in FINOVA's possession shall be deemed held by FINOVA as security
for any and all of Guarantor's obligations to FINOVA hereunder.
1
6. SUBORDINATION - WAIVER OR RIGHT OF SUBROGATION
Any and all present and future indebtedness and obligations of Debtor to
Guarantor are hereby postponed in favor or and subordinated to the full
payment and performance of all present and future obligations of Debtor to
FINOVA.
To the extent FINOVA receives payment on account of the indebtedness
guaranteed hereby, which payment is thereafter set aside or required to be
repaid by FINOVA in whole or in part, then, to the extent of any sum not
finally retained by FINOVA (regardless of whether such sum is recovered from
FINOVA by Debtor, its trustee or any other party acting for, on behalf of or
through Debtor), Guarantor's obligations to FINOVA under this Guaranty, as
amended, modified or supplemented, shall remain in full force and effect (or
be reinstated) until Guarantor has made payment to FINOVA for such repaid
payments.
Guarantor hereby irrevocably waives and relinquishes all statutory,
contractual, common law, equitable and all other claims against Debtor, any
collateral for the indebtedness guaranteed hereby or other assets of Debtor
or any other obligor, for subrogation, reimbursement, exoneration,
contribution, indemnification, setoff or other recourse in respect of sums
paid or payable to FINOVA by Guarantor hereunder and Guarantor hereby further
irrevocably and unconditionally waives and relinquishes any and all other
benefits which Guarantor might otherwise directly or indirectly receive or be
entitled to receive by reason of any amounts paid by or collected or due from
Guarantor Debtor or any other obligor with respect to the indebtedness
guaranteed hereby or realized from their property.
7. EVENTS OF DEFAULT
If Guarantor or Debtor should at any time become insolvent, or make a general
assignment for the benefit of creditors, or if a proceeding shall be
commenced by, against or in respect of Guarantor or Debtor under the Federal
Bankruptcy Code or any state insolvency law, or if any individual Guarantor
dies, any and all of Guarantors obligations under this Guaranty shall, at
FINOVA's option, forthwith become due and payable without notice.
8. CONTINUING NATURE OF GUARANTY
This is a continuing guaranty. This instrument shall continue in full force
and effect until terminated by the actual receipt by FINOVA of written notice
of termination from a Guarantor. Such termination shall be applicable only to
the Agreements or Transactions having their inception thereafter, and rights
and obligations arising out of the Agreements or Transactions having their
inception prior to such termination shall not be affected.
9. NO WAIVER BY FINOVA
No failure, omission or delay on the part of FINOVA in exercising any rights
hereunder or in taking any action, to collect or enforce payment or
performance of any of the Agreements or any of the Transactions, either
against Debtor or any other person liable therefore, shall operate as a
waiver of any such right or shall, in any manner, prejudice the rights of
FINOVA against Guarantor.
10. CUMULATIVE REMEDIES
All of FINOVA's rights, remedies and recourse under the Agreements or
Transactions or this Guaranty, are separate and cumulative and may be pursued
separately, successively or concurrently, are non-exclusive and the exercise
of any one or more of them, shall in no way limit or prejudice any other
legal or equitable right, remedy or recourse to which FINOVA may be entitled.
11. MODIFICATIONS
No provision hereof shall be modified or limited, except by a written
agreement expressly referring hereto and to the provision so modified or
limited, and signed by Guarantor and FINOVA.
12. COVENANTS OF GUARANTOR
Guarantor represents that all financial and other information furnished to
FINOVA was, at the time of delivery, true and correct. Guarantor agrees to
provide FINOVA with such financial information as set forth in the Loan and
Security Agreement between Debtor and FINOVA dated , 1998 and such
other financial or credit information as FINOVA reasonably requests until all
obligations of Debtor to FINOVA are paid in full.
13. MERGER
This writing is intended by the parties as a final expression of this
agreement of guaranty and is intended also as a complete and exclusive
statement of the terms of this agreement of guaranty. No course of prior
dealings between the parties, no usage of the trade, and no parole or
extrinsic evidence of any nature shall be used or be relevant to supplement
or explain or modify any term used in this agreement of guaranty.
14. SEVERABILITY
In case any one or more of the provisions contained in this Guaranty shall
for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Guaranty shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
2
15. NOTICES
Guarantor agrees that any notice or demand upon Guarantor shall be deemed to
be sufficiently given or served if it is in writing and is personally served,
or in lieu of personal service is mailed by first class certified mail,
postage prepaid, or by private courier such as Federal Express, addressed to
Guarantor at the addresses set forth below. Any notice or demand so mailed
shall be deemed received on the date of actual receipt or the first business
day following mailing, whichever first occurs.
16. GOVERNING LAW
THIS INSTRUMENT SHALL FOR ALL PURPOSES BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA. GUARANTOR CONSENTS TO THE
PERSONAL JURISDICTION OF ANY FEDERAL COURT IN THE STATE OF ARIZONA OR ANY
STATE COURT LOCATED IN MARICOPA COUNTY, ARIZONA WITH RESPECT TO ANY LEGAL
ACTION COMMENCED HEREUNDER AND TO THE FULLEST EXTENT ALLOWED BY LAW.
GUARANTOR HEREBY WAIVES ANY OBJECTION GUARANTOR MAY HAVE TO THE VENUE OF SUCH
COURTS OR THE CONVENIENCE OF THIS FORUM. NOTHING CONTAINED HEREIN IS INTENDED
TO PRECLUDE FINOVA FROM COMMENCING ANY ACTION HEREUNDER IN ANY COURT HAVING
JURISDICTION THEREOF.
GUARANTOR WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED HEREON. GUARANTOR ALSO WAIVES THE BENEFIT OF ANY STATUTE OF
LIMITATIONS AFFECTING GUARANTOR'S LIABILITY HEREUNDER OR THE ENFORCEMENT
THEREOF.
17. SUCCESSORS AND ASSIGNS
This Guaranty shall inure to the benefit of FINOVA, its successors and
assigns and shall be binding on Guarantor and its successors and assigns,
and/or heirs, administrators or personal representatives.
IN WITNESS WHEREOF, the undersigned Guarantor has duly executed this
Guaranty this 1st day of December, 1998.
CORPORATE GUARANTOR
TOMAHAWK CORPORATION
By: /s/ S. M. CAIRA President
-------------------------------------
(Title)
8315 Century Park Court, Ste 200
-------------------------------------
(Street Address)
San Diego, CA 92123
-------------------------------------
(City, State, Zip Code)
CORPORATE RATIFICATION
I TOM DUSMET, duly authorized Corporate Secretary declare and ratify on
behalf of the TOMAHAWK CORPORATION the following:
I am the duly elected Corporate Secretary of the TOMAHAWK CORPORATION,
pursuant to the bylaws of the corporation, and I am authorized by the
corporation to make this ratification.
STEVEN M. CAIRA, President of the TOMAHAWK CORPORATION, is lawfully and duly
authorized to enter into the above-executed Guaranty Agreement with FINOVA
FINANCIAL CORPORATION INC. The above signature is that of STEVEN M. CAIRA,
President of the TOMAHAWK CORPORATION.
The TOMAHAWK CORPORATION hereby ratifies the GUARANTY AGREEMENT between
TOMAHAWK CORPORATION and FINOVA FINANCIAL CORPORATION as executed by TOMAHAWK
CORPORATION President STEVEN M. CAIRA.
Executed this First day of December 1998.
/s/ Tom Dusmet Corporate Secretary
- ----------------
IN WITNESS WHEROF, I have affixed my name as Secretary of the Corporation and
have caused the corporate seal of the Corporation to be affixed this First
day of December 1998
/s/ Tom Dusmet Corporate Secretary
- ----------------
TOM DUSMET
FINOVA Capital Corporation
115 West Century Road
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 634-3300
Exhibit E
MASTER LEASE SCHEDULE
NO. C0856002 TO EQUIPMENT LEASE NO. C0856001 (THE "LEASE")
EQUIPMENT LEASED: SUPPLIER:
See Schedule "A" attached hereto CMM Products
3185 Airway Avenue
Costa Mesa, CA 92626
LOCATION OF EQUIPMENT:
8315 Century Park
Court #200
San Diego, CA 92123
TERM OF SCHEDULE: FORTY-EIGHT (48) MONTHS
SIX (6) SUCCESSIVE MONTHLY RENTAL PAYMENTS EACH IN THE AMOUNT OF $1,782.00
FOLLOWED BY FORTY-TWO (42) SUCCESSIVE MONTHLY RENTAL PAYMENTS EACH IN THE AMOUNT
OF $3,137.20, SUBJECT TO THE INDEXING PROVISION CONTAINED HEREIN, PAYABLE IN
ARREARS.
ADDITIONAL TERMS AND CONDITIONS
1. LEASE OF EQUIPMENT. Lessor hereby agrees to lease to Lessee, and Lessee
hereby agrees to lease and rent from Lessor the Equipment listed above, or on
any Schedule attached hereto, for the term and the rental payments provided
herein, all subject to the terms and conditions of the Lease.
2. OPTION TO PURCHASE. Provided Lessee is not in default under the Lease or this
Schedule or under any other Lease or agreement with Lessor, Lessee shall have
the right, at the expiration of the Term of this Schedule or any extended term
thereof, upon not less than 120 days' prior written notice to Lessor, to
purchase the Equipment leased hereunder, in whole but not in part, on an as-is,
where-is basis for the fair market value thereof which the parties agree is
$1.00.
3. ADDITIONAL TERMS WITH RESPECT TO THE CARE AND USE OF THE EQUIPMENT. In
addition to Lessee's obligations under Paragraph 7 of the Lease, Lessee shall
(i) lubricate the Equipment on a basis that conforms to the maintenance manual
and/or lubrication schedule recommended by the manufacturer of the Equipment,
and (ii) purchase replacement parts only from sources approved by the
manufacturer. Copies of all purchase orders for such replacement parts are to
be retained in Lessee's file relating to the Equipment.
4. ADDITIONAL TERMS WITH RESPECT TO THE CONDITIONS OF REDELIVERY. In addition to
Lessee's obligations under Paragraph 8 of the Lease, Lessee shall (i) dismantle
and handle the Equipment in accordance with the manufacturer's specifications or
normal industry accepted practices for new equipment. Any special transportation
devices, such as metal skids, lifting slings, brackets, etc., which were with
the Equipment when it was delivered or equivalent devices must be used; (ii)
block all sliding members, secure all swinging doors, pendants and other
swinging components, wrap, box, band and label all components and documents in
an appropriate manner to facilitate the efficient reinstallation of the
components; (iii) remove all process fluids from the Equipment and dispose of
the same in accordance with prevailing waste disposal laws and regulations; (iv)
clean and dry sumps and tanks; (v) not ship any "Hazardous Waste" materials with
the equipment; (vi) fill all internal fluids such as lube oil and hydraulic oil
to operating levels, secure filler caps and seal disconnected hoses; (vii) wire
together all lock keys and secure the same to a major external component of the
equipment; (viii) cause the Equipment to be complete, fully functional with no
missing components or attachments, rust free with all boots, guards and seals
clean and with all batteries for control memories fully charged.
Lessor shall have the right to attempt to resell the Equipment at the
Location for a period of 120 days from the expiration of the Term of the
Schedule or any extensions thereof. During this period the Equipment must remain
operational and Lessee must provide adequate electrical power, lighting, heat,
water and compressed air, necessary to permit Lessor to demonstrate the
Equipment to any potential buyer. If an auction is necessary to dispose of the
Equipment, Lessor shall be permitted to auction the Equipment at the Location.
5. INDEXING. If on the Commencement Date, the highest yield on four (4) year
Treasury Notes, as published in THE WALL STREET JOURNAL, with a maturity date on
or closest to the maturity date of this Schedule (the "Index"), exceeds 4.33%
(the "Yield"), the Monthly Rental Payment provided herein shall automatically be
increased for the full term to reflect such increase in the Yield. As soon as
practicable thereafter, Lessor shall provide Lessee with written notice of any
increase in the Monthly Rental Payment. Lessor's calculations shall be
conclusive absent manifest error.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION TOMAHAWK II INC.
BY: BY: /s/ Michael H. Lorber
------------------------- ----------------------------
PRINTED NAME: PRINTED NAME: Michael H. Lorber
--------------- -------------------
TITLE: TITLE: VP-Finance & CFO
---------------------- --------------------------
ADDRESS: ADDRESS:
115 WEST CENTURY ROAD, P.O. BOX 907 8315 CENTURY PARK, COURT #200
PARAMUS, NEW JERSEY 07653 SAN DIEGO, CALIFORNIA 92123
DATE ACCEPTED: DATED: 1/18/99
------------------ ---------------
Schedule "A" to Master Lease Schedule No. C0856002 to
Equipment Lease No. C0856001 between Tomahawk II, Inc.
as Lessee and FINOVA Capital Corporation as Lessor.
Qty Description
1 DEA Gamma 1204 CNC CMM
Measuring Range: 80" x40" x27"
Accuracy: .0008 (Volumetric - Over entire envelope)
Repeatability: +/- .0002"
Virtual-Dimis Measuring Software:
Direct Joystick Measurement
Self Teach Part Programming
CNC Part Program Execution
Graphical On & Off-Line Part Program Creation
3D Direct CAD Link
Solid Model Graphical Representation
Multi-Tasking Capabilities
Comprehensive Multi-Media Help
Software Algorithms Approved to EUR 13417 Test Report
Networking Capabilities
New Computer Hardware Specifications:
IMS 450 Mhz Pentium II w/MMX Processor
128 MB SDRAM
4.0 GB Hard Drive
32 X Max Variable CD-ROM Drive
3.5" Diskette Drive
4 MB PCI Graphics Accelerator
16-Bit Stereo Sound System
Universal Serial Bus Connections
56K External Modem
Network Card
Microsoft Windows '98 Pre-Installed
17" Color Monitor
HP 722C Ink Jet Printer
Measuring Software Upgrade System:
M9 Based Electronic System, 32-Bit Transputer-Based Continuous
Motion Serve Control Card Assembled into the PC
Portable Joystick Teach Box Unit w/ Interface
System Desk for Computer & Peripherals
On-Line System Diagnostic Software
Probing System:
Renishaw Motorized PH-9 Probe Head
Renishaw TP-2 Touch Probe
Renishaw Probe Kit
Surface Module Included
Miscellaneous Accessories:
Wilkerson Air Dryer
Norgren H20 & Particle Seperators
Reference Sphere
Clamping Kit
Training Applications Support & Software Maintenance:
Virtual-Dimis Training Course, 4 Days for 2 Persons in Brea, CA
Six Months Software Up-Dates at No Charge
Installation & Standard Calibration Included
FINOVA Capital Corporation
115 West Century Road
P.O. Box 907
Paramus, New Jersey 07653
Telephone (201) 634-3300
Exhibit F
MASTER LEASE SCHEDULE
NO. C0856002 TO EQUIPMENT LEASE NO. C0856001 (THE "LEASE")
EQUIPMENT LEASED: SUPPLIER:
See Schedule "A" attached hereto CMM Products
3185 Airway Avenue
Costa Mesa, CA 92626
LOCATION OF EQUIPMENT:
8315 Century Park
Court #200
San Diego, CA 92123
TERM OF SCHEDULE: FORTY-EIGHT (48) MONTHS
SIX (6) SUCCESSIVE MONTHLY RENTAL PAYMENTS EACH IN THE AMOUNT OF $1,879.20
FOLLOWED BY FORTY-TWO (42) SUCCESSIVE MONTHLY RENTAL PAYMENTS EACH IN THE AMOUNT
OF $3,308.32, SUBJECT TO THE INDEXING PROVISION CONTAINED HEREIN, PAYABLE IN
ARREARS.
ADDITIONAL TERMS AND CONDITIONS
1. LEASE OF EQUIPMENT. Lessor hereby agrees to lease to Lessee, and Lessee
hereby agrees to lease and rent from Lessor the Equipment listed above, or on
any Schedule attached hereto, for the term and the rental payments provided
herein, all subject to the terms and conditions of the Lease.
2. OPTION TO PURCHASE. Provided Lessee is not in default under the Lease or this
Schedule or under any other Lease or agreement with Lessor, Lessee shall have
the right, at the expiration of the Term of this Schedule or any extended term
thereof, upon not less than 120 days' prior written notice to Lessor, to
purchase the Equipment leased hereunder, in whole but not in part, on an as-is,
where-is basis for the fair market value thereof which the parties agree is
$1.00.
3. ADDITIONAL TERMS WITH RESPECT TO THE CARE AND USE OF THE EQUIPMENT. In
addition to Lessee's obligations under Paragraph 7 of the Lease, Lessee shall
(i) lubricate the Equipment on a basis that conforms to the maintenance manual
and/or lubrication schedule recommended by the manufacturer of the Equipment,
and (ii) purchase replacement parts only from sources approved by the
manufacturer.. Copies of all purchase orders for such replacement parts are to
be retained in Lessee's file relating to the Equipment.
4. ADDITIONAL TERMS WITH RESPECT TO THE CONDITIONS OF REDELIVERY. In addition to
Lessee's obligations under Paragraph 8 of the Lease, Lessee shall (i) dismantle
and handle the Equipment in accordance with the manufacturer's specifications or
normal industry accepted practices for new equipment. Any special transportation
devices, such as metal skids, lifting slings, brackets, etc., which were with
the Equipment when it was delivered or equivalent devices must be used; (ii)
block all sliding members, secure all swinging doors, pendants and other
swinging components, wrap, box, band and label all components and documents in
an appropriate manner to facilitate the efficient reinstallation of the
components; (iii) remove all process fluids from the Equipment and dispose of
the same in accordance with prevailing waste disposal laws and regulations; (iv)
clean and dry sumps and tanks; (v) not ship any "Hazardous Waste" materials with
the equipment; (vi) fill all internal fluids such as lube oil and hydraulic oil
to operating levels, secure filler caps and seal disconnected hoses; (vii) wire
together all lock keys and secure the same to a major external component of the
equipment; (viii) cause the Equipment to be complete, fully functional with no
missing components or attachments, rust free with all boots, guards and seals
clean and with all batteries for control memories fully charged.
Lessor shall have the right to attempt to resell the Equipment at the
Location for a period of 120 days from the expiration of the Term of the
Schedule or any extensions thereof. During this period the Equipment must remain
operational and Lessee must provide adequate electrical power, lighting, heat,
water and compressed air, necessary to permit Lessor to demonstrate the
Equipment to any potential buyer. If an auction is necessary to dispose of the
Equipment, Lessor shall be permitted to auction the Equipment at the Location.
5. INDEXING. If on the Commencement Date, the highest yield on four (4) year
Treasury Notes, as published in THE WALL STREET JOURNAL, with a maturity date on
or closest to the maturity date of this Schedule (the "Index"), exceeds 4.33%
(the "Yield"), the Monthly Rental Payment provided herein shall automatically be
increased for the full term to reflect such increase in the Yield. As soon as
practicable thereafter, Lessor shall provide Lessee with written notice of any
increase in the Monthly Rental Payment. Lessor's calculations shall be
conclusive absent manifest error.
This Master Lease Schedule cancels and supercedes previous dated January 18,
1999 by Lessee.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION TOMAHAWK II, INC.
BY: /s/ A. Holland BY: /s/ Michael H. Lorber
---------------------- -----------------------------
PRINTED NAME: A. Holland PRINTED NAME: Michael H. Lorber
------------------- --------------------
TITLE: Director, Cont. Admn. TITLE: VP-Finance & CFO
------------------------ ---------------------------
ADDRESS: ADDRESS:
115 WEST CENTURY ROAD, P.O. BOX 907 8315 CENTURY PARK, COURT #200
PARAMUS, NEW JERSEY 07653 SAN DIEGO, CALIFORNIA 92123
DATE ACCEPTED: 2/24/99 DATED: 2/22/99
-------------------- -------------------------